The presentation of the review of the Supreme Court on the practice of class actions in Ukraine, for which the practical cases of GRECO Law Company formed the basis, was delivered during the Round Table “Prospects for the introduction of class actions in Ukraine”, held online on January 27, 2023.
EU Project Pravo-Justice and the Advocates’ Association of Ukraine (AAU) were the initiators of the round table. Speakers: Roman Maidanyk – a doctor of law, professor of the Law Institute at T. Shevchenko KNU, Vasyl Krat – PhD in Law, a judge of the Supreme Court, associate professor; Remko van Ree – a doctor of law, professor, international expert of the EU Project Pravo-Justice, Olena Sukmanova, the First Deputy Minister of Justice of Ukraine; Sofiia Danyliv – a judge of the Bila Tserkva City District Court of Kyiv region; Anna Adamska-Galant – a chief international justice expert of the EU Project Pravo-Justice.
The judge of the Civil Court of Cassation as part of the Supreme Court, Vasyl Krat, delivering a report on the topic “Searching for the optimal protection design for a certain circle of persons (representative actions)”, stated that the format of a class action is more typical of the Anglo-Saxon legal tradition, therefore, efforts to implement its application in the continental tradition encounter sometimes a certain lack of perception and understanding. At the same time, according to the speaker, the European approach consists in expanding the scope of class actions beyond the regulation of consumer protection, but taking into account the legal tradition of individual member states.
Vasyl Krat delivered a report, presenting an overview of the current judicial practice of the Supreme Court regarding the consideration of class action lawsuits, in particular, those filed by public organizations in the interests of their members, and drew attention to the current procedural legislation of Ukraine allowing filing class actions. He also cited the resolutions of the Supreme Court that addressed the issues of consideration of class action lawsuits, including two practical cases accompanied by GRECO Law Company: the case No. 754/8602/18 (action of the NGO “Fund for Overcoming the Consequences of the Vasylkiv Tragedy”) and the case No. 487/ 6970/20 (action of the NGO “Stop Shlam”).
Thus, in the case on the lawsuit bought by the NGO “Fund for Overcoming the Consequences of the Vasylkiv Tragedy”, the GRECO Law Company team provided assistance to the residents of Vasylkiv – 2,225 members of the NGO, who suffered as a result of a fire at an oil depot in the village of Kriachky, Vasylkiv district, in obtaining monetary compensation for moral damage totalling to USD 1 million.
In the case initiated by the NGO “Stop Shlam”, which acted on behalf of 1,279 of its associated members, against Mykolaiv Alumina Plant LLC (note: member of the RUSAL concern) for recovery of UAH 9.208 billion as moral damage caused to its members, the judge V. Krat considered the the cassation appeal of the NGO. This case most vividly shows how the filing of a class action should be implemented, in particular, by establishing an NGO that will act on behalf of its members.
Representing the interests of NGOs in these cases, the lawyers of the Greco Law Company established the judicial practice, including at the level of the Supreme Court, regarding the possibility of environmental NGOs to protect their members without applying the institution of joinder, without obtaining powers of attorney from each member of the Organization, i.e., actually legitimizing the institution of a class action in the domain of enforcement of the Ukrainian procedural legislation.
GRECO Law Company’s lawyer Artemii Vorobiov noted, adding to these statements: “Most lawsuits in Ukraine that have the characteristics of a class action are initiated according to the following models: – opt-in – involves the joining of all interested members of the group to the initiator of the lawsuit at the time of filing the corresponding action; the law does not establish a special procedure and terms for the joining of individuals to the action after its filing; this model is used mainly in the protection of environmental rights of citizens;
– opt-out – is in the stage of formation of its judicial practice; the Supreme Court recognizes the possibility of filing such actions regarding the protection of an unspecified range of consumer rights (resolution of the Grand Chamber of the Supreme Court dated 23.03.2021 in re. No. 367/4695/20), however, there are still no final solutions for such disputes in Ukraine.
Greco Law Company’s experts took part in the preparation of the draft law dated 15.05.2019 No. 10292 On the introduction of class actions for consumer rights and environmental protection into the legislation of Ukraine, but it was not submitted for consideration by the Verkhovna Rada of Ukraine.
Pavlo Kuftyryev, the managing partner of the Greco Law Company, pointed out the following: “Greco Law Company is the first and only law firm in Ukraine that has a positive practice with class actions. It is important that right now, during the military aggression of the russian federation, the issue of the practical application of the class action mechanism in Ukraine has reached a more significant level, even a nationwide level. Needless to say, we still have a long way ahead to form and shape the institution of class actions, to develop appropriate changes in national legislation. However, the practice that is being formed today, as well as urgent challenges we face now, give us a clear understanding that a class action is the most effective and efficient tool for the protection of a significant number of persons affected by a single offense, in particular, compensation for damages caused by a negative impact of war on the natural environment, life and health of Ukrainian citizens who suffered from the russian aggression.”
More details on the Vasyl Krat’s presentation see at https://bit.ly/3DspY94.